575 F.

2d 1303

UNITED STATES of America, Plaintiff-Appellee,

v.
Jacob James DOST and Thomas Edward Kilfoyle, DefendantsAppellants.
Nos. 76-1829, 76-1830.

United States Court of Appeals,

Tenth Circuit.
Argued and Submitted Dec. 12, 1977.
Decided May 1, 1978.
Rehearing Denied June 9, 1978.

Ronald F. Ross, Asst. U. S. Atty., Albuquerque, N. M. (Victor R. Ortega,

U. S. Atty., Albuquerque, N. M., on the brief), for plaintiff-appellee.
Burton C. Jacobson, Beverly Hills, Cal. (John B. Leyba, Albuquerque, N.
M., on the brief), for Jacob James Dost, defendant-appellant.
David M. Ebel, Denver, Colo. (Davis, Graham & Stubbs, Denver, Colo.,
on the brief), for Thomas Edward Kilfoyle, defendant-appellant.
Before SETH, Chief Judge, and McWILLIAMS and McKAY, Circuit
Judges.
McWILLIAMS, Circuit Judge.

In the first count of a four-count indictment, James Dost and Thomas Kilfoyle
were charged with mailing nonmailable matter from Los Angeles, California, to
Roswell, New Mexico, in violation of 18 U.S.C. 1461. The material in
question was an advertising letter giving information as to where, how, from
whom, and by what means certain nude photographs could be obtained. In the
other three counts, the two defendants were also charged with mailing other
nonmailable matter from Los Angeles, California, to Roswell, New Mexico,
namely, obscene photographs, in violation of 18 U.S.C. 1461. Each of the
latter three counts was based on a separate mailing. A jury convicted the
defendants on all four counts, and each now appeals his sentence. We affirm.

Both defendants assert that the photographs in question were not obscene, as a
matter of law, and that the trial court erred in submitting the issue to the jury.
We disagree. The photographs in question were of ten- and eleven-year-old
girls, in the nude, in suggestive poses, and doing a variety of lewd acts. On the
issue of obscenity, the photographs in a very real sense speak for themselves.
However, the prosecution did not rest there, and called two expert witnesses,
both clinical psychologists, who testified at length. The defense countered with
some expert witnesses of their own. However, all this created was an issue of
fact. There is ample evidence to support the jury's determination that the
photographs were obscene. We think the trial court in its definition of obscenity
complied with Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419
(1973).

The trial court instructed the jury concerning the effect to be given any
evidence of pandering. The instruction given was couched in language from
Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966).
Both defendants now claim that the trial court erred in giving the so-called
pandering instruction. We disagree.

The jury was instructed that in determining whether the photographs in

question were obscene, they could consider any evidence of "pandering" in
making such determination. Pandering was then defined. In short, the jury was
instructed that they could take into consideration the "setting" in which the
photographs and brochures were presented by the two defendants. Without
going into greater detail, we find no error in the giving of the trial court's
instruction on pandering. It is common sense that the mode and manner in
which the photographs were presented to the general public is one fact that may
be considered in determining whether, under the Miller test, the photographs
themselves are obscene. It is true that pandering was not charged in the
indictment of the defendants, nor is it an element of the crimes which were
charged. However, evidence of pandering can be relevant in determining
whether the materials in issue are obscene. We find no error in the giving of the
instruction. Hamling v. United States, 418 U.S. 87, 130, 94 S.Ct. 2887, 41
L.Ed.2d 590 (1974).

Both defendants also challenge the grand jury proceedings which lead to the
present indictment. At oral argument counsel conceded that he had an "uphill
battle" on this particular point. In our view, counsel did not win his battle. We
find nothing to indicate grand jury irregularity. United States v. Donahey, 529
F.2d 831 (5th Cir. 1976) and United State v. Evans, 542 F.2d 805 (10th Cir.
1976).

Kilfoyle asserts one additional ground for reversal. Dost conceded sending the
materials in question through the mail, and his main line of defense was that the
material was not obscene. Kilfoyle claims that the evidence is insufficient to tie
him in with Dost, and that in any event he had no knowledge of the type of
material being sent through the mail. We disagree.

Kilfoyle opened the Post Office box in Los Angeles to which inquiries were
directed. In opening the box, Kilfoyle indicated that a part of the business was
the mailing of "photographs." Both Kilfoyle and Dost picked up the mail which
had been sent to the box in response to advertisements placed in sex-oriented
papers. And very significantly, when arrested, Kilfoyle blurted out,
spontaneously and in response to no questioning, that he "had checked with an
attorney and that an attorney had told him that it was all right to mail the
merchandise that he was selling through the U. S. mails." This utterance clearly
permits the inference that Kilfoyle knew the nature of the material in which he
and Dost were dealing. The fact his lawyer may have given Kilfoyle some bad
advice does not shield Kilfoyle from the consequences of his act. On the
evidence, Kilfoyle is not an innocent bystander. United States v. Spoonhunter,
476 F.2d 1050 (10th Cir. 1973) and United States v. Bourassa, 411 F.2d 69
(10th Cir. 1969).

Judgment affirmed.